Deposition madness

At issue is Nesson's decision to seek a sworn deposition from Matthew Oppenheim, outside counsel retained by the RIAA to manage its file-sharing litigation. Deposing one of the other side's lawyers is an... unorthodox legal strategy, since much of what would presumably be asked would be covered by attorney/client privilege.

Nesson pressed ahead, filing a Motion to Compel the deposition with the court, and he hoped to hold the deposition in a Harvard auditorium (Oppenheim lives in Washington, DC). The music industry objected, saying that Nesson had not even followed certain basic procedures, such as paying for travel and filing relevant documents with the court, and asked the Court to sanction Nesson over the entire affair.

As we noted last week, the judge has had enough and said that "the Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future."

"I made a mistake by not withdrawing my motion to compel Matthew Oppenheim's deposition immediately after the January 22 date had passed," Nesson wrote the Court yesterday. "I acknowledge and apologize for this, both to you and to my opponents. I wasted the Court's time. I take seriously the Court's warning about imposing sanctions. I thank you for not imposing them. I will make amends."

Sounds like a serious apology. But as IP attorney Ben Sheffner notes, it's actually way, way less than it appears. As Nesson noted in a comment on anti-RIAA lawyer Ray Beckerman's blog, the apology wasn't for trying to depose Oppenheim or for not obeying a host of rules regarding proper notice, but "for not withdrawing [the motion to compel] when the January 22 date had passed without resolution of it."

Err, ok. The whole case has grown so strange that even Beckerman, no friend of the labels, wrote an editorial aside in which he said, "To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible. Please don't ask me where in the federal rules there is a provision for a notice of apology. Last time I looked, there isn't any such provision."

"I can only hope that more good than bad comes out of this nonsense," he added, "but I am not in the least sanguine about it."

"Sanguine" isn't a bad word here, because if this case continues the way it's been going, Tenenbaum could well be bleeding profusely from the pound of flesh the labels are bent on extracting from him by the end of the summer.

O Captain, my Captain!

So the bizarre case continues to lurch along. Today, the Harvard Law students doing much of the work on the case posted an update to their JoelFightsBack.com website saying, "Make no mistake about it: we are a student run team." The first comment on the post, filed by Professor Nesson, says, "make no mistake, we are a faculty run team, with me as Joel's lawyer, captain and supervisor of the team."

But whoever's in charge (the students tell me that Nesson really is the leader) will soon be getting the advice of another lawyer, Boston's Matt Feinberg, who will be advising the team. "We aren't trying to lead a movement against music or copyright or adequate compensation for artists," say the students. "We're just trying to defend Joel. But we know the stakes are high. And that's why we're gathering the best talent there is."

Tenenbaum's trial, scheduled for early this summer, looks certain to provide excellent entertainment value for spectators. On the other hand, as the team correctly points out, losing could cost one Boston University graduate student a life's worth of debt.

Uh, or it could just be that the professor is making a mockery of himself and the system. I'm starting to get quite sympathetic to the RIAA in this case, there is a lack of professionalism happening here. I fear the precedent that this case may set.

Its starting to seem less about RIAA vs. Joel Tenenbaum, and far more about the absolute corruption pervading every level of the corporate/government/judicial triumvirate.

Um, what? I have no love for the RIAA, but this has nothing to do with any corruption and everything to do with a Harvard Law professor who apparently has no clue as to how to litigate a case. There are rules as to how you proceed in a lawsuit. Nesson broke several of them. It's just that simple.

It's good that they're apparently seeking the advice of an attorney with experience now. It's all nice and noble for this class to take on the case. But first and foremost, this is about the financial security of a real person. This is like medical students doing open heart surgery in a classroom with their professor, and the prof just accidentally removed the spleen. Oops! Sorry, but hey we're learning here!

Originally posted by Meridian:I am suddenly very disturbed by this case.

Its starting to seem less about RIAA vs. Joel Tenenbaum, and far more about the absolute corruption pervading every level of the corporate/government/judicial triumvirate.

It seems to me that your point is exactly what Mr. Nesson is attempting to make very visible publically. Perhaps that is the ONLY way to garner enough public support have the process changed. He also seems to be eluding to the premise that the prosecutor has much more freedom in filing excessive and troublesome motions than the defendants are ever allowed.

It seems to me that your point is exactly what Mr. Nesson is attempting to make very visible publically. Perhaps that is the ONLY way to garner enough public support have the process changed. He also seems to be eluding to the premise that the prosecutor has much more freedom in filing excessive and troublesome motions than the defendants are ever allowed.

The reality, from what I've picked up about the case, is that the judge was sympathetic to the defendant because of all the crap that the RIAA has pulled... you don't mess with a sympathetic judge just in order to pull some more crap to make some obscure point that only comes through if you squint just right.

Far more likely is that he thought he had the judge on his side, and thought he could bully the prosecution because of it. Now that he's finding that isn't the case, he's attempting to play little games to try and defuse the situation while maintaining his swagger.

Excuse me? I knew Harvard students view themselves as some kind of elite. I guess they don't mean best in usage of the language? Maybe they ought to attenuate that statement with an "available" on the end of it.

Yeah, I had a lot of hope when this case started that it might be a watershed moment in the RIAA's ongoing abuse of the legal system to screw people over. Now, it just seems like a farce, and frankly depresses me. Way to snatch defeat from the jaws of victory, Harvard Law!

You know, if Ray Beckerman speaks out against the antics of the defendant's lawyers, there is a message there to heed. I don't mind Nesson trying to make a point, but he needs to make that point on his own time and not screw over his client in the process. Nothing is being learned there, and the ramifications could wind up being very harsh for his client as a result of his actions. You don't screw the person you're supposed to be helping. That's just bad protocol.

None of this surprises me at all, honestly. Law school professors often have absolutely no court room experience and know even less about trial courts (almost everything taught in law school is appellate cases). Civ pro (civil procedure, ie, proper etiquette for the court room) is one class that most people don't pay attention to, and unless this guy was a civ pro prof, he doesn't know much more than a lay man in the subject.

And yeah, you don't apologize to a judge, at least by letter. You do it in person in chambers with no record. This is a farce.

And the students are probably worse. Harvard kids are so damn entitled; though in fairness, all of them are basically guaranteed 100k+ jobs when they graduate (they have something like a 95%+ placement rating). But they don't a damn thing about how to actually run a case in the real world. Litigation is nasty, ruthless, unforgiving, and destructive. That crap they learn in the class room is all friendly and nice and pretty, with maybe some casual debates going on in the background. The real world doesn't work like that.

Anyway, this is sad, really. I can't even see what point he was trying to make. You can almost never depose an opposing counsel unless they were actively involved in the background (in which case they should not be counsel). psha. Harvard sucks...